(PC) Kumar v. Saucedo

• Court: District Court, E.D. California
• Decided: March 24, 2025
• Docket: 2:24-cv-01772
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SANJAY KUMAR, No. 2:24-cv-01772 CSK P 12 Plaintiff, 13 v. ORDER 14 J. SAUCEDO, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant 18 to 42 U.S.C. § 1983. On August 7, 2024, the Court dismissed plaintiff’s complaint with leave to 19 amend. (ECF No. 7.) Pending before the Court is plaintiff’s amended complaint. (ECF No. 11.) 20 I. SCREENING STANDARDS 21 The court is required to screen complaints brought by prisoners seeking relief against a 22 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 23 court must dismiss a complaint or portion thereof if the prisoner raised claims that are legally 24 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 25 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 26 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 27 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 28 Cir. 1984). The court may, therefore, dismiss a claim as frivolous when it is based on an 1 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 2 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 3 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 4 Cir. 1989), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 5 2000) (“[A] judge may dismiss [in forma pauperis] claims which are based on indisputably 6 meritless legal theories or whose factual contentions are clearly baseless.”); Franklin, 745 F.2d at 7 1227. 8 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain 9 statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the 10 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic 11 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 12 In order to survive dismissal for failure to state a claim, a complaint must contain more than “a 13 formulaic recitation of the elements of a cause of action;” it must contain factual allegations 14 sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 550 U.S. at 555. 15 However, “[s]pecific facts are not necessary; the statement [of facts] need only ‘give the 16 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Erickson v. 17 Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic, 550 U.S. at 555, citations and internal 18 quotations marks omitted). In reviewing a complaint under this standard, the court must accept as 19 true the allegations of the complaint in question, Erickson, 551 U.S. at 93, and construe the 20 pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 21 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984). 22 II. DISCUSSION 23 Named as defendants are Deputy Saucedo, Deputy Deo, Deputy Lee, Deputy Trost, 24 Deputy Xiong, Food Service Manager/Supervisor Johnson, Kitchen Deputy Meyer, Control 25 Officer Ceries, Reception Deputy Cuems, Nurse Randy, Nurse Alex, Dr. Tseng1 and Lieutenant 26 1 In the amended complaint, plaintiff identifies defendant Tseng as both a doctor and a nurse. 27 (ECF No. 11 at 1, 6.) Based on the allegations in the amended complaint, it appears likely that defendant Tseng is a doctor. If plaintiff files a second amended complaint, plaintiff shall clarify 28 whether defendant Tseng is a doctor or a nurse. 1 Aaron Leahy. (ECF No. 11 at 1.) The alleged deprivations occurred at the Sacramento County 2 Main Jail and the Rio Consumes Correctional Center (“RCCC”). Plaintiff appears to have been a 3 pretrial detainee at the time of the alleged deprivations. Plaintiff’s amended complaint contains 4 three claims for relief. 5 A. Claim One 6 1. Allegations in Claim One 7 Plaintiff alleges that he is a member of the Hindu religion. (Id. at 2.) On April 28, 2022, 8 the Chaplain at the Sacramento County Main Jail approved plaintiff’s Hindu vegetarian diet. (Id.) 9 Plaintiff did not receive his Hindu vegetarian diet the whole time he was incarcerated at the 10 Sacramento County Main jail and RCCC from April 21, 2022 to February 9, 2024. (Id.) Plaintiff 11 alleges that he never knew what the ingredients were in the food he was served. (Id.) The 12 religious diets are prepared at outside facilities. (Id.) In plaintiff’s grievance filed on June 2, 13 2022 at RCCC, plaintiff stated that he was still not getting his Hindu vegetarian diet every day 14 following his transfer from the Sacramento County Main Jail to RCCC. (Id.) Plaintiff filed other 15 grievances on October 10, 2022 and January 28, 2023 regarding his failure to receive his Hindu 16 vegetarian diet. (Id.) The “grievance reply” (apparently written by plaintiff), dated October 10, 17 2022, stated that there were instances where plaintiff accidentally consumed food not knowing 18 the ingredients. (Id.) This document also stated that plaintiff was not handed his meal on several 19 occasions. (Id.) In a grievance reply, dated January 28, 2023, plaintiff stated that he was still 20 trying to resolve the “incorrect Hindu religious vegetarian diet issue.” (Id.) Plaintiff alleges that 21 “[t]he involvement of defendants Johnson and Meyer was mentioned since my grievance were 22 answered.” (Id.) 23 Plaintiff also alleges that defendants Johnson and Meyer served red wine vinegar in 24 plaintiff’s religious vegetarian meal, which plaintiff consumed. (Id. at 3.) Plaintiff alleges that 25 consuming red wine vinegar violates plaintiff’s Hindu religion. (Id.) 26 Plaintiff alleges that on December 16, 2022, defendant Xiong deliberately removed 27 religious worship pictures of Hindu deities belonging to plaintiff. (Id.) These pictures were 28 thrown to plaintiff’s bunk from the wall. (Id.) Plaintiff alleges that defendant Xiong destroyed 1 plaintiff’s altar of religious worship, which substantially burdened plaintiff’s practice of his 2 religion. (Id.) Plaintiff alleges that people who eat meat are not allowed to touch pictures of 3 Hindu deities. (Id.) Plaintiff alleges that defendant Xiong’s handling of plaintiff’s religions 4 materials showed a blatant lack of respect for plaintiff’s religious beliefs. (Id.) Plaintiff alleges 5 that defendant Xiong did not remove religious pictures (apparently related to other religions) and 6 sexually suggestive pictures displayed by other inmates. (Id.) Plaintiff alleges that defendant 7 Xiong discriminated against plaintiff based on plaintiff’s race and religious beliefs. (Id.) 8 Plaintiff also alleges that defendant Xiong was not helpful to plaintiff when plaintiff 9 needed help to correct plaintiff’s religious diet. (Id.) During breakfast most of the time, 10 defendant Xiong was the lead deputy on the morning shift. (Id.) Defendant Xiong noted 11 plaintiff’s complaint about the diet but did not solve the issue. (Id.) 12 2. Analysis 13 Plaintiff claims that he was denied his Hindu vegetarian diet for the entire time he was 14 incarcerated in the Sacramento County Main Jail and RCCC. Plaintiff alleges that “[t]he 15 involvement of defendants Johnson and Meyer was mentioned since my grievance were 16 answered.” (ECF No. 11 at 2.) Plaintiff’s allegations regarding the involvement of defendants 17 Johnson and Meyer in plaintiff’s alleged failure to receive his Hindu vegetarian diet are not clear. 18 For this reason, plaintiff’s claims against defendants Johnson and Meyer regarding plaintiff’s 19 alleged failure to receive his Hindu vegetarian diet are dismissed. See Ivey v. Board of Regents, 20 673 F.2d 266, 268 (9th Cir. 1982) (vague allegations of official participation in civil rights 21 violations are not sufficient). If plaintiff is claiming that defendants Johnson and Meyer knew of 22 plaintiff’s alleged failure to receive his Hindu vegetarian diet based on their review of and 23 response to plaintiff’s grievances, plaintiff shall make this clear in a second amended complaint. 24 Plaintiff’s claim that defendants Johnson and Meyer served plaintiff food containing red 25 wine vinegar in violation of plaintiff’s Hindu religion states a potentially colorable First 26 Amendment claim. See O’Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987) (citation omitted) 27 (inmates “retain protections afforded by the First Amendment including its directive that no law 28 shall prohibit the free exercise of religion.”); McElyea v. Babbitt, 833 F.2d 196, 198 (9th Cir. 1 1987) (per curiam) (“Inmates…have the right to be provided with food sufficient to sustain them 2 in good health that satisfies the dietary laws of their religion.”). 3 Plaintiff’s claim that defendant Xiong destroyed plaintiff’s religious Hindu altar states a 4 potentially colorable First Amendment claim. See O’Lone, 482 U.S. at 348. Plaintiff’s claim that 5 defendant Xiong removed plaintiff’s Hindu religious pictures but not pictures from other religions 6 and sexually suggestive pictures displayed by other inmates states a potentially colorable Equal 7 Protection claim for discrimination based on plaintiff’s religion. See Shakur v. Schriro, 514 F.3d 8 878, 891 (9th Cir. 2008) (quoting Cruz v. Beto, 405 U.S. 319, 322 (1972) (“[T]he Equal 9 Protection Clause entitles each prisoner to ‘a reasonable opportunity of pursuing his faith 10 comparable to the opportunity afforded fellow prisoners who adhere to conventional religious 11 precepts.’”). 12 Plaintiff also alleges that defendant Xiong discriminated against plaintiff based on 13 plaintiff’s race when defendant Xiong removed plaintiff’s Hindu religious pictures but not 14 pictures from other religions and sexually suggestive pictures displayed by other inmates. 15 “Prisoners are protected under the Equal Protection Clause of the Fourteenth Amendment from 16 invidious discrimination based on race.” Wolff v. McDonnell, 418 U.S. 539, 556 (1974) (citation 17 omitted). To state a claim for violation of the Equal Protection Clause, “a plaintiff must show 18 that the defendants acted with an intent or purpose to discriminate against the plaintiff based on 19 membership in a protected class.” Furnace v. Sullivan, 705 F.3d 1021, 1030 (9th Cir. 2013) 20 (citation and internal quotation marks omitted). Plaintiff has not pled sufficient facts 21 demonstrating that defendant Xiong acted with the intent to discriminate against plaintiff based 22 on plaintiff’s race when defendant Xiong allegedly removed plaintiff’s religious pictures. 23 Accordingly, this claim is dismissed. 24 Plaintiff claims that during breakfast time, defendant Xiong noted plaintiff’s complaint 25 regarding plaintiff’s failure to receive a Hindu vegetarian meal but did not solve the problem. 26 These allegations state a potentially colorable First Amendment claim against defendant Xiong. 27 See McElyea, 833 F.2d at 198. 28 / / / 1 B. Claim Two 2 1. Allegations in Claim Two 3 On January 28, 2023, plaintiff was escorted to the holding tank to resolve his grievance 4 regarding his religious diet. (ECF No. 11 at 4.) Plaintiff alleges that while being escorted, 5 defendant Saucedo used excessive force against plaintiff. (Id.) Plaintiff alleges that defendant 6 Saucedo forcibly pushed plaintiff down. (Id. at 5.) Plaintiff alleges that because of the excessive 7 force, plaintiff suffered chronic lumbar radiculopathy, foot pain, hyperlipidemia, lower back pain, 8 left shoulder pain and varicose veins in the lower leg. (Id.) Plaintiff alleges that defendant 9 Saucedo was assisted by defendants Deo, Lee and Trost. (Id. at 4.) Plaintiff alleges that these 10 four defendants surrounded plaintiff and began to threaten plaintiff, using profanity. (Id.) 11 2. Analysis 12 The Fourteenth Amendment protects a pretrial detainee from the use of excessive force 13 that amounts to punishment. See Graham v. Connor, 490 U.S. 386, 395 n. 10 (1989). To prevail 14 on an excessive force claim, “a pretrial detainee must only show that the force purposefully or 15 knowingly used against him was objectively unreasonable.” Kingsley v. Hendrickson, 576 U.S. 16 389, 396-97 (2015). Plaintiff appears to claim that defendant Saucedo threw plaintiff to the 17 ground without cause. This Court finds that plaintiff states a potentially colorable Fourteenth 18 Amendment claim against defendant Saucedo for the alleged use of excessive force. 19 “Officers can be liable for failing to intercede in situations where excessive force is 20 claimed to be employed by other officers only if ‘they had an opportunity to intercede.’” Hughes 21 v. Rodriguez, 31 F.4th 1211, 1223 (9th Cir. 2003) (quoting Cunningham v. Gates, 229 F.3d 1271, 22 1289-90 (9th Cir. 2000)). “Furthermore, officers can be held liable for excessive force on a 23 theory of integral participation only if they participate ‘in some meaningful way’ in the specific 24 actions that constituted the violation.” Id. (quoting Boyd v. Benton County, 374 F.3d 773, 780 25 (9th Cir. 2004)). 26 While plaintiff alleges that defendant Saucedo was assisted by defendants Deo, Lee and 27 Trost, apparently in the transport of plaintiff, plaintiff does not plead sufficient facts 28 demonstrating that defendants Deo, Lee and Trost participated in the alleged use of excessive 1 force by defendant Saucedo or had an opportunity to intercede in defendant Saucedo’s alleged use 2 of excessive force against plaintiff. While plaintiff claims that all four defendants surrounded 3 plaintiff and began using profanity against plaintiff, plaintiff does not describe whether this 4 occurred before or after defendant Saucedo threw plaintiff to the ground. Without additional 5 information regarding the circumstances of the alleged excessive force, this Court cannot 6 determine whether defendants Deo, Lee and Trost can be liable for defendant Saucedo’s alleged 7 use of excessive force against plaintiff. Accordingly, the claims against defendants Deo, Lee and 8 Trost are dismissed. 9 C. Claim Three 10 1. Allegations in Claim Three 11 On January 29, 2023, plaintiff wrote a Health Service Request based on the lower back 12 and upper back pain caused by defendant Saucedo’s alleged use of excessive force on January 28, 13 2023. (ECF No. 11 at 5.) On January 31, 2023, social worker Alison told plaintiff that she would 14 “give more information,” but failed to do so. (Id. at 6.) On February 8, 2023, plaintiff submitted 15 another request for medical care. (Id.) On February 16, 2023, plaintiff submitted another request 16 for medical care. (Id.) On February 26, 2023, a registered nurse saw plaintiff “to let the medical 17 doctor know about the plaintiff’s back pain.” (Id.) On April 13, 2023, defendant Tseng 18 authorized x-rays and a blood test for plaintiff. (Id.) The x-ray technician later told plaintiff that 19 defendant Tseng authorized a chest x-ray and a blood test for tuberculosis. (Id.) On May 31, 20 2023, a lower bunk chrono was issued for plaintiff. (Id.) Plaintiff’s lower back pain persists. 21 (Id.) From June 1, 2023 to February 29, 2024, the medical staff at RCCC did not give plaintiff 22 further medical treatment. (Id.) 23 On January 29, 2023, February 8, 2023 and February 13, 2023, defendants Nurse Alex 24 and Nurse Randy refused plaintiff treatment saying that at RCCC, they do not provide treatment 25 for “back pain injury.” (Id.) Defendants Nurse Alex and Nurse Randy advised plaintiff to 26 follow-up with his primary care physician following plaintiff’s release from custody. (Id.) 27 On May 23, 2023 and May 27, 2023, plaintiff wrote to medical requesting an x-ray for his 28 lower back due to pain. (Id.) Plaintiff received no response to these requests. (Id.) Plaintiff 1 alleges that due to his failure to receive medical care from defendants Alex, Randy and Tseng, 2 plaintiff now suffers from chronic lumbar radiculopathy, foot pain, hyperlipidemia, lower back 3 pain, left shoulder pain and varicose veins in the lower leg. (Id. at 7.) Plaintiff’s body pain 4 affects plaintiff’s daily movements. (Id.) 5 Plaintiff alleges that defendant Ceries works the Pod Control Tower. (Id.) Defendant 6 Ceries was always rude and angry when plaintiff tried to fix his religious diet. (Id.) She 7 threatened plaintiff through the intercom that she would put plaintiff in the holding tank. (Id.) 8 She also told plaintiff that she could not correct plaintiff’s diet because the kitchen was closed, 9 which plaintiff alleges is not correct. (Id.) 10 Plaintiff alleges that on October 27, 2022, plaintiff received a note from defendant Cuems 11 saying that plaintiff could not have the “prescribed” glasses plaintiff’s wife had brought because 12 they had metal frames. (Id.) Plaintiff told defendant Cuems that there were inmates at RCCC 13 who had metal frame glasses, metal walkers and other medical metal gear provided by RCCC to 14 inmates. (Id.) Plaintiff received no response from defendant Cuems. (Id.) Defendant Cuems 15 never gave plaintiff the metal frame glasses the entire time plaintiff was at RCCC. (Id.) 16 2. Analysis 17 Claims for violations of the right to adequate medical care brought by detainees arise 18 under the Fourteenth Amendment and are evaluated under an objective deliberate-indifference 19 standard. See Gordon v. County of Orange, 888 F.3d 1118, 1124-25 (9th Cir. 2018). “[T]he 20 elements of a pretrial detainee’s medical care claim against an individual defendant under the due 21 process clause of the Fourteenth Amendment are: (i) the defendant made an intentional decision 22 with respect to conditions under which the plaintiff was confined; (ii) those conditions put the 23 plaintiff at substantial risk of suffering serious harm; (iii) the defendant did not take reasonable 24 available measures to abate that risk, even though a reasonable official in the circumstances 25 would have appreciated the high level of risk involved—making the consequences of defendant’s 26 conduct obvious; and (iv) by not taking such measures, the defendant caused the plaintiff’s 27 injuries. With respect to the third element, the defendant’s conduct must be objectively 28 unreasonable, a test that will necessarily turn[ ] on the facts and circumstances of each particular 1 case.” Id. at 1125 (footnote, citations and internal quotation marks omitted). 2 Plaintiff alleges that defendant Tseng authorized a chest x-ray and blood test for 3 tuberculosis instead of an x-ray of plaintiff’s back. However, plaintiff pleads no facts 4 demonstrating that defendant Tseng knew of plaintiff’s back injury and/or back pain. Plaintiff 5 does not claim, for example, that plaintiff informed defendant Tseng of plaintiff’s back injury 6 and/or back pain during an examination. While plaintiff alleges that on May 23, 2023 and May 7 27, 2023, plaintiff wrote to medical requesting an x-ray for his lower back due to pain, plaintiff 8 pleads no facts demonstrating that defendant Tseng had knowledge of these requests. 9 Accordingly, this Court finds that plaintiff fails to state a potentially colorable Fourteenth 10 Amendment claim against defendant Tseng for failing to order a back x-ray for plaintiff because 11 plaintiff fails to plead facts demonstrating that defendant Tseng had knowledge of plaintiff’s 12 alleged back injury and/or back pain. 13 This Court finds that plaintiff states a potentially colorable Fourteenth Amendment claim 14 against defendants Nurse Alex and Nurse Randy based on their alleged failure to treat plaintiff’s 15 back pain because RCCC does not provide treatment for “back pain injury.” See Gordon, 888 16 F.3d at 1124-25. Plaintiff’s claim that defendant Ceries refused to help plaintiff obtain his Hindu 17 vegetarian diet by falsely claiming that the kitchen was closed states a potentially colorable First 18 Amendment claim. See McElyea, 833 F.2d at 198. Plaintiff’s claim that defendant Cuems would 19 not allow plaintiff to possess his prescription glasses because they had metal frames even though 20 other inmates possessed glasses with metal frames states a potentially colorable Fourteenth 21 Amendment claim. See Gordon, 888 F.3d at 1124-25. 22 D. Defendant Leahy 23 Plaintiff’s amended complaint contains no allegations against defendant Leahy. The Civil 24 Rights Act under which this action was filed provides as follows: 25 Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation 26 of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, 27 or other proper proceeding for redress. 28 42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the 1 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 2 Monell v. Department of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 3 (1976). “A person ‘subjects’ another to the deprivation of a constitutional right, within the 4 meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or omits 5 to perform an act which he is legally required to do that causes the deprivation of which 6 complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 7 Moreover, supervisory personnel are generally not liable under § 1983 for the actions of 8 their employees under a theory of respondeat superior and, therefore, when a named defendant 9 holds a supervisorial position, the causal link between him and the claimed constitutional 10 violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); 11 Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978), cert. denied, 442 U.S. 941 (1979). Vague 12 and conclusory allegations concerning the involvement of official personnel in civil rights 13 violations are not sufficient. See Ivey 673 F.2d at 268. Accordingly, all claims against defendant 14 Leahy are dismissed because defendant Leahy is not linked to any alleged deprivations. 15 III. CONCLUSION 16 For the reasons discussed above, this Court finds that the following claims raised in the 17 amended complaint are potentially colorable: 1) First Amendment free exercise of religion claim 18 against defendants Johnson and Meyer for allegedly serving plaintiff meals containing red wine 19 vinegar; 2) First Amendment free exercise of religion claim against defendant Xiong for allegedly 20 destroying plaintiff’s Hindu altar; 3) Fourteenth Amendment equal protection claim for 21 discrimination based on plaintiff’s religion against defendant Xiong for allegedly removing 22 plaintiff’s Hindu pictures but not removing pictures from other religions and sexually suggestive 23 pictures displayed by other inmates; 4) First Amendment free exercise of religion claim against 24 defendant Xiong for allegedly failing to assist plaintiff in obtaining his Hindu vegetarian meals; 25 5) Fourteenth Amendment claim against defendant Saucedo for allegedly using excessive force 26 against plaintiff on January 28, 2023; 6) Fourteenth Amendment claim against defendants Nurse 27 Alex and Nurse Randy for allegedly denying plaintiff treatment for his back injuries and back 28 pain on January 29, 2023, February 8, 2023 and February 13, 2023; 7) First Amendment free 1 exercise of religion claim against defendant Ceries for allegedly failing to assist plaintiff in 2 obtaining his Hindu vegetarian meals; and 8) Fourteenth Amendment adequate medical care 3 claim against defendant Cuems for allegedly refusing to allow plaintiff to possess prescription 4 glasses with metal frames. 5 For the reasons discussed above, the Court finds that the following claims raised in the 6 amended complaint are not potentially colorable: 1) First Amendment free exercise of religion 7 claim against defendants Johnson and Meyer based on plaintiff’s alleged failure to receive his 8 Hindu vegetarian diet; 2) Fourteenth Amendment claim against defendants Deo, Lee and Trost 9 based on their alleged failure to intervene when defendant Saucedo used excessive force; 10 3) Fourteenth Amendment equal protection claim for discrimination based on race against 11 defendant Xiong based on defendant Xiong’s alleged removal of plaintiff’s Hindu pictures; 12 4) Fourteenth Amendment adequate medical care claim against defendant Tseng based on 13 defendant Tseng’s alleged failure to order an x-ray of plaintiff’s back; and 5) all claims against 14 defendant Leahy. 15 Plaintiff may proceed forthwith to serve defendants Johnson, Meyer, Xiong, Saucedo, 16 Nurse Alex, Nurse Randy, Ceries and Cuems with those claims found potentially colorable, or he 17 may delay serving any defendant and attempt to cure the pleading defects as to those claims against 18 defendants Johnson, Meyer, Deo, Lee, Trost, Tseng, Xiong and Leahy found not potentially 19 colorable. If plaintiff elects to proceed forthwith as to his potentially colorable claims, then within 20 thirty days plaintiff must so elect on the appended form. In this event, the Court will construe 21 plaintiff’s election as consent to dismissal of the those claims found not potentially colorable. 22 Under this option, plaintiff does not need to file a second amended complaint. 23 Or, plaintiff may delay serving any defendant and attempt again to cure the pleading 24 defects as to his non-colorable claims. If plaintiff elects to attempt to file a second amended 25 complaint, he has thirty days to do so. Plaintiff is not granted leave to add new claims or new 26 defendants. 27 Any second amended complaint must show the federal court has jurisdiction, the action is 28 brought in the right place, and plaintiff is entitled to relief if plaintiff’s allegations are true. It 1 must contain a request for particular relief. Plaintiff must identify as a defendant only persons 2 who personally participated in a substantial way in depriving plaintiff of a federal constitutional 3 right. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the 4 deprivation of a constitutional right if he does an act, participates in another’s act or omits to 5 perform an act he is legally required to do that causes the alleged deprivation). 6 A district court must construe a pro se pleading “liberally” to determine if it states a claim 7 and, prior to dismissal, tell a plaintiff of deficiencies in his complaint and give plaintiff an 8 opportunity to cure them. See Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000). While 9 detailed factual allegations are not required, “[t]hreadbare recitals of the elements of a cause of 10 action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 11 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff 12 must set forth “sufficient factual matter, accepted as true, to ‘state a claim to relief that is 13 plausible on its face.’” Ashcroft, 556 U.S. at 678 (quoting Bell Atlantic Corp., 550 U.S. at 570). 14 A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the 15 defendant is liable for the misconduct alleged. The plausibility standard is not akin to a “probability requirement,” but it asks for 16 more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a 17 defendant’s liability, it stops short of the line between possibility and plausibility of entitlement to relief. 18 19 Ashcroft, 566 U.S. at 678 (citations and quotation marks omitted). Although legal conclusions 20 can provide the framework of a complaint, they must be supported by factual allegations, and are 21 not entitled to the assumption of truth. Id. 22 An amended complaint must be complete in itself without reference to any prior pleading. 23 Local Rule 220; see Ramirez v. County of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015) 24 (“an ‘amended complaint supersedes the original, the latter being treated thereafter as non- 25 existent.’” (internal citation omitted)). Once plaintiff files an amended complaint, the original 26 pleading is superseded. Plaintiff is not granted leave to add new claims or new defendants. 27 Accordingly, IT IS HEREBY ORDERED that: 28 1. The following claims are dismissed with leave to amend: 1) First Amendment free 1 exercise of religion claim against defendants Johnson and Meyer based on plaintiff’s alleged 2 failure to receive his Hindu vegetarian diet; 2) Fourteenth Amendment claim against defendants 3 Deo, Lee and Trost based on their alleged failure to intervene when defendant Saucedo used 4 excessive force; 3) Fourteenth Amendment equal protection claim for discrimination based on 5 race against defendant Xiong based on defendant Xiong’s alleged removal of plaintiff’s Hindu 6 pictures; 4) Fourteenth Amendment adequate medical care claim against defendant Tseng based 7 on defendant Tseng’s alleged failure to order an x-ray of plaintiff’s back; and 5) all claims against 8 defendant Leahy. Within thirty days of service of this order, plaintiff may file a second amended 9 complaint to attempt to cure the pleading defects as to these claims. Plaintiff is not obligated to 10 amend his complaint. 11 2. The allegations in the amended complaint are sufficient at least to state potentially 12 cognizable claims against defendants Johnson, Meyer, Xiong, Saucedo, Nurse Alex, Nurse 13 Randy, Ceries and Cuems as follows: 1) First Amendment free exercise of religion claim against 14 defendants Johnson and Meyer for allegedly serving plaintiff meals containing red wine vinegar; 15 2) First Amendment free exercise of religion claim against defendant Xiong for allegedly 16 destroying plaintiff’s Hindu altar; 3) Fourteenth Amendment equal protection claim for 17 discrimination based on plaintiff’s religion against defendant Xiong for allegedly removing 18 plaintiff’s Hindu pictures but not removing pictures from other religions and sexually suggestive 19 pictures displayed by other inmates; 4) First Amendment free exercise of religion claim against 20 defendant Xiong for allegedly failing to assist plaintiff in obtaining his Hindu vegetarian meals; 21 5) Fourteenth Amendment claim against defendant Saucedo for allegedly using excessive force 22 against plaintiff on January 28, 2023; 6) Fourteenth Amendment claim against defendants Nurse 23 Alex and Nurse Randy for allegedly denying plaintiff treatment for his back injuries and back 24 pain on January 29, 2023, February 8, 2023 and February 13, 2023; 7) First Amendment free 25 exercise of religion claim against defendant Ceries for allegedly failing to assist plaintiff in 26 obtaining his Hindu vegetarian meals; and 8) Fourteenth Amendment adequate medical care 27 claim against defendant Cuems for allegedly refusing to allow plaintiff to possess prescription 28 glasses with metal frames. See 28 U.S.C. § 1915A. If plaintiff chooses to proceed solely as to 1 | such claims, plaintiff shall so indicate on the attached form and return it to the Court within thirty 2 || days from the date of this order. In this event, the Court will construe plaintiffs election to 3 || proceed forthwith as consent to an order dismissing the defective claims without prejudice. 4 3. The Clerk of the Court is directed to send plaintiff the form for a civil rights complaint 5 || by a prisoner. 6 4. Failure to comply with this order will result in a recommendation that this action be 7 || dismissed. 8 9 | Dated: March 24, 2025 4 aA 10 Aan Spe | CHI SOO KIM i UNITED STATES MAGISTRATE JUDGE 12 |) Kum1772.ame/2 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14

1 2 3 UNITED STATES DISTRICT COURT 4 FOR THE EASTERN DISTRICT OF CALIFORNIA 5 6 SANJAY KUMAR, No. 2:24-cv-1772 CSK P 7 Plaintiff, 8 v. NOTICE OF ELECTION 9 J. SAUCEDO, et al., 10 Defendants. 11 12 13 Plaintiff elects to proceed as follows:

14 ______ Plaintiff opts to proceed with the potentially colorable claims identified in 15 the order screening the amended complaint. Under this option, plaintiff consents to dismissal of the following claims without prejudice: 1) First 16 Amendment claim against defendants Johnson and Meyer based on plaintiff’s alleged failure to receive his Hindu vegetarian diet; 17 2) Fourteenth Amendment claim against defendants Deo, Lee and Trost based on their alleged failure to intervene when defendant Saucedo used 18 excessive force; 3) Fourteenth Amendment equal protection claim against 19 defendant Xiong based on defendant Xiong’s alleged removal of plaintiff’s Hindu pictures based on plaintiff’s race; 4) Fourteenth Amendment claim 20 against defendant Tseng based on defendant Tseng’s alleged failure to order an x-ray of plaintiff’s back; and 5) all claims against defendant 21 Leahy.

22 OR

23 _____ Plaintiff opts to file a second amended complaint and delay service of process. 24 25 DATED:

26 _______________________________ Plaintiff 27 28